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High Court quashes “irrational” decision not to prosecute alleged traffickers
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The High Court in COL v Director of Public Prosecutions  EWHC 601 (Admin) has taken the Crown Prosecution Service to task for its decision not to charge the alleged traffickers of a victim of modern slavery.
The claimant, a national of the Philippines and a domestic worker, was confirmed as a victim of modern slavery by the Home Office in November 2014. She has since fought tooth and nail with reluctant prosecuting authorities to bring her alleged traffickers to justice; following this judgment it will be the fifth time the case has gone before the authorities for a charging decision.
The court held that the Crown Prosecution Service’s latest reasons for not prosecuting were so fundamentally flawed as to be irrational. The judgment is a good read for anyone interested in the public law principles of prosecuting perpetrators of modern slavery.
COL came to the UK in 2013 on a domestic worker visa, meaning her immigration status was tied to her employment by a UAE diplomat and his wife. Her certificate of sponsorship specified a 40-hour working week and a salary of £1,000 a month (just above minimum wage at the time).
Things did not work out that way, COL said:
She claims that… she was required to work 14-15 hours each day and was only remunerated between £100-£200 per month. Her passport was taken from her. Her movement was sometimes restricted in that she was sometimes locked in the family home when [her employers] were out, and other times she was prevented from leaving the family home without permission. She did not have access to medical care when sick.
The claimant escaped and contacted the charity Kalayaan, which provides essential support to migrant domestic workers. She entered the National Referral Mechanism and was found to be a victim of trafficking. This was on the basis that she had been deceived as to the salary she would receive and the hours she would work. Her certificate of sponsorship said one thing, but the treatment she experienced was totally different. This issue of deception would be a key issue for the court in her judicial review proceedings.
COL also reported her former employers to the police and has been battling to have them charged ever since. This present judgment is the second in the claimant’s favour in two years: judicial proceedings in 2020 also led to the High Court quashing a “fundamentally flawed” CPS decision.
Was the claimant “deceived” into exploitation?
In deciding whether to charge the alleged traffickers this time around, the CPS explored several possible offences. One was “trafficking people for exploitation” contrary to section 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. On facts like these, a crucial element of that offence — since superseded by new legislation — was deception of the victim by their alleged traffickers.
The CPS looked at the claimant’s certificate of sponsorship and, strangely, held that the breach of its terms only amounted to evidence of deceit of the UK immigration authorities, but not the claimant herself. It concluded therefore that the evidential threshold for charging under this offence wasn’t met.
The court rejected this, finding that the CPS was overlooking the significance of the certificate to the claimant:
… the defendant’s conclusion that this documentation could only prove a deception of the UK authorities is misconceived and unsustainable. These were documents that the claimant was required to sign as part of the visa process and as part of a sensible system of documenting the substance of the employment contract… The inclusion of the payment of £1000 a month within that documentation was capable of amounting to not simply a deception of the UK authorities but also the claimant, who was required to sign the documentation and would have been aware, therefore as she said, of what she was promised to be paid in the UK.
The court found that the CPS’s conclusions on the 2004 Act were “unsustainable”.
A pretty ugly last-gasp argument by the defendant on the deception point was that COL may have, in effect, been in on it – that she knew she would be paid less than £1000 a month and so was technically party to the deception. Mr Justice Dove said that “this would amount to an extremely unattractive defence, to put it as neutrally as possible”.
Relationship of “employment” or dependence?
There is also some helpful guidance on how someone’s immigration status can accentuate their vulnerability to abuse by their employer – a recognised danger for migrant domestic workers. The CPS considered whether an offence might have been committed under section 1 of the Fraud Act 2006 (whether there had been an “abuse of position”) but concluded that the claimant was not sufficiently dependent on her alleged traffickers for this offence to be made out. In justifying this the CPS stated that the claimant was in a mere employment relationship, which wasn’t enough to engage the offence.
Again, the court held the CPS’s reasoning here to be fatally flawed, and listed some of the features of the relationship which went beyond a mere employment relationship:
In short, this was not simply a relationship of employer and employee: it was a particular relationship in which not only the question of employment, but also the provision of accommodation, and most pertinently the dependency of her immigration status in the UK on her sponsor and continued employment were integral elements of their relationship. The potential for exploitation in these circumstances was clear and these were features well beyond the simple relationship of employer and employee clearly capable of giving rise to an expectation of the kind envisaged in section 4 of the 2006 Act.
For victims of modern slavery, half of the legal battle is having their account believed by the authorities to access much needed state support. The other half is having those responsible for their treatment brought to justice.
This is the second time the claimant has won in court on this matter, and the fifth time she and her lawyers have resorted to public law remedies to get the prosecuting authorities to take her seriously. Poor police investigations and failed prosecutions are common for victims of modern slavery, and it is unfortunate that the only method of challenge available is judicial review. This reluctance to prosecute alleged traffickers and exploiters often contrasts sharply with the authorities’ enthusiasm for prosecuting the victims themselves as though they were the prosecutors.